Whether, according to the current laws, Does the Madras High Court have
jurisdiction to grant custodial rights with regards to an Anglo Indian child, to
her mother, after a declaration that she is the natural guardian, as once the
rights are granted, the child will be sent to England, out of the jurisdiction
and effective control of the Madras High Court?
Section 25 in The Guardians and Wards Act, 1890
25. Title of guardian to custody of ward:
- If a ward leaves or is removed from the custody of a guardian of his
person, the Court, if it is of opinion that it will be for the welfare of
the ward to return to the custody of his guardian, may make an order for his
return and for the purpose of enforcing the order may cause the ward to be
arrested and to be delivered into the custo≠dy of the guardian.
- For the purpose of arresting the ward, the Court may exercise the power
conferred on a Magistrate of the first class by section 100 of the Code of
Criminal Procedure, 1882 (10 of 1882)1.
- The residence of a ward against the will of his guardian with a person
who is not his guardian does not of itself terminate the guardianship.
High Court, Madras 28 & 29 VIC., C. 15
For the High Court of Judicature for the Presidency of Madras (28th December,
17.Jurisdiction as to infants and lunatics:
And we do further ordain that the said High Court of Judicature at Madras shall
have the like power and authority with respect to the persons and estates of
infants, idiots and lunatics within the presidency of Madras, as that which is
now vested in the said High ('ours immediately before the publication of these
Before we proceed with the analysis, we shall see the facts of the case:
- The present case is an appeal against the order of Ismail, J. in an
application by the appellant, a mother, under the Guardians and Wards Act
(hereinafter called the Act), for custody of her female child, Mary Charmine
Martin, aged 14, from the respondent, the putative father, after a
declaration that she is the natural guardian. The parties are Anglo-Indians,
professing the Roman Catholic faith. They live at Royapuram, within the
Madras city limits.
- When the appellant was barely 17 years of age, respondent, who is her
mother's sister's husband, seduced her. This was in the year 1950. R. W. 2,
Mrs, Martin, his wife, being frail, fickle minded and sickly, could not
prevent this illicit intimacy between these two. The appellant became more
and more involved, and she gave birth to the female child with whom we are
now concerned on 8-9-1955. She lived with the respondent till the year 1963,
and during this period, she was ill-treated and beaten occasionally by the
respondent when he was under the influence of drink to which he was
addicted. Too often he was in financial difficulties and impecunious
- Two of the maternal aunts of the appellant. Mrs. Rennie Tuck and Mrs. E.
A. Day live permanently in England. During the year 1963, the appellant also
left India for England, leaving the child with the respondent, with a view
to build a future.
- There she secured a job of a short-hand writer cum-secretary on a salary
of £.17-15 per week. She also got herself married to one Hugh Williams, and
through him she has no Issues so far. She was remitting moneys and sending
presents to her child, as will be evident from the acknowledgments (Ex. P. 7
- Meantime, in India the respondent was adjudged insolvent in the year
1966 in I. P. 43 of 1966, and it is stated that he has since been
discharged. During December 1967, the appellant came over to India and
resolved to take the child with her to England with a view to give her a
decent life, good upbringing and sound education. It appears that at first
the respondent agreed for this course, though he How states that he
consented only for a temporary sojourn of the child for a holiday.
The appellant had approached the High Commissioner of the United Kingdom at
Madras for this purpose and she had obtained Ex. p. 1, a declaration of
sponsorship for this child. The respondent appears to have changed his mind
and he did not even send her a reply to the letter written by the appellant
in April 1968, through her solicitors. This refusal on his part resulted in
the Initiation of proceedings by the appellant under Section 25 of the
Guardians and Wards Act, for securing custody of her child for taking it to
- The appellant, in her affidavit, averred that it is not in the good
interest of the child to continue to live with the respondent, his sickly
wife, and their adult son aged 21, that the atmosphere is not quite
congenial, and that the welfare of the minor required it to be taken away
from the environment.
The respondent denied the allegations and resisted the claim stating that the
removal of the minor from his custody and delivering her to the appellant, who
lives in London, outside the jurisdiction of this Court, would not be legally
permissible, because it would be Impossible for this Court to exercise any
jurisdiction and effective control over the appellant when once she left the
shores of India. He further contended that the appellant was not also entitled
to ask for custody of the child under Section 25 of the Act.
Now let us proceed to the analysis with the help of relevant precedents and
According to Cornell Law School, Parens patriae
is Latin for "Parent
of the country or homeland.
" Under Parens Patriae
, a state or court
has a paternal and protective role over its citizens or others subject to its
jurisdiction. The doctrine of parens patriae is a doctrine under which a state
has third-party standing to bring a lawsuit on behalf of a citizen when the suit
implicates a state's quasi-sovereign interests for the well-being of its
citizens. The parens patriae doctrine is also the doctrine in which all orphans,
dependent children, and persons deemed incompetent are within the special
protection, and under the control of the state.
In the book Eversley on Domestic Relations, VI Edn., at page 440, as below:
According to the older law, neither the putative father nor the mother of an
illegitimate child had the legal right of guardianship, but the tendency of the
modern law is to recognise the mother not only as the natural but the legal
guardian of her bastard child and entitled to its custody unless there are very
strong reasons for displacing her right so that she may sue out a writ of Habeas
Corpus for the recovery of its person from strangers into whose custody she had
delivered it and if her choice of a home would be beneficial to the interests of
the child, the court will order it to be delivered up in order that it may go to
such new home; but this right of the mother is not absolute.
The statement of law in Halsbury's Laws of England, 3rd Edn. at page 108 is
The father of an illegitimate child, so long as the child remains illegitimate,
is not generally recognised by the law of England, for civil purposes. He is
under no obligation to provide for the child, in the absence of any affiliation
order, unless she had adopted it de facto or obtained an adoption order. But he
may make a binding contract with the mother to contribute towards its
maintenance; this is terminated by the death of the mother.
Unless he has obtained an adoption order, the father has no right to the custody
of the child, even though he is in a better position to maintain it and he
cannot appoint a guardian for it by will. Whenever he is in lawful custody of
the child, the court will protect his right.
A mother is bound to maintain her illegitimate child until the child attains the
age of 16. If the child is committed to the care of a fit person or sent to an
approved school (as, for example, where the child is in need of care or
protection or is a juvenile offender) or if the child is received into the care
of a local authority, the mother is liable to make contribution towards the
upkeep of the child until the child attains the age of 16.
The mother's obligation to maintain involves a right to the child's custody,
which the court will protect by Habeas Corpus, and in determining any question
as to custody, the court will have primary regard to the wishes of the mother
even as against the father. She has also the right to determine the religion of
her child, so long as her duty to support the child remains, and her consent is
required to the marriage of the bastard child while an infant, unless she has
been deprived of the child's custody by order of the court or a resolution of a
local authority is in force assuming parental rights. She may have the right to
certain allowances and benefits in respect of the child.
In Gautam Menon1 v. Sucharitha Gautam
, reported in 1991 (1) MLJ 212,
Hon'ble Mr. Justice A.R. Lakshmanan, had considered the question of jurisdiction
and after referring to the Division Bench judgments in The Rajah of Vizianagaram
and Pamela Williams, referred to supra, had held as follows:
10. The argument advanced by the learned Counsel for the respondent that
hardship would be caused to his clients if they are asked to appear before this
Court and to contest the proceedings, cannot have any basis when the question of
jurisdiction is involved in this case. As stated above Clause 17 of the Letters
Patent confers jurisdiction on this Court. When the question of jurisdiction is
involved the question of convenience as alleged by the respondent does not arise
at all for any consideration.
Hence I reject the arguments advanced by the learned Counsel for the respondent
and accept the arguments for the petitioner with regard to the jurisdiction. In
my opinion all the decisions referred to above are directly applicable to the
facts and circumstances of this case. Respectfully following the above decisions
I hold that this Court has jurisdiction to try the O.P. filed by the husband in
this Court, for the custody of the minor children.
The Full Bench of Bombay High court in In Re 2 : Ratanji Ramaji,
in AIR 1941 BOMBAY 397, had in fact relying upon the judgment of the Division
Bench of this Court in The Rajah of Vizianagaram, cited supra, and concluded
that the High Court in exercise of its original jurisdiction has jurisdiction
even over minors residing outside its territorial jurisdiction.
While doing so the Hon'ble Full Bench observed as follows:
15. In this state of case-law, it appears that there is nothing in the words of
Clause 37 to exclude infants, who are outside the limits of the ordinary
original civil jurisdiction of the Court, but who are stated in this case to be
within the Bombay Presidency from its operation. The weight of judicial
decisions is in favour of that view.
The learned Single Judge of the Calcutta High Court in Sanjib Saha 3 v.
, reported in AIR 2006 Cal 214, had after taking note of the
language of Clause 17 of the Letters Patent, concluded as follows:
15. The language of clause 17 of Letters Patent 1865, and also the Supreme Court
as far the Bengal division of the Presidency of Fort William are same with those
of the Bombay Division. It is the historical event therefore, Supreme Courts in
three different Presidency towns by the Charter were established, thereafter
three chartered High Courts were established by first Letters Patent 1862
followed by 1865.
I with respect following the aforesaid interpretation of the corresponding
Clause 17 of Bombay division hold that the jurisdiction conferred upon this
Court is not restricted to the territory of Presidency town of Calcutta, but
extend to Bengal Division of the Presidency of Fort William meaning thereby
throughout State of West Bengal. The phrase 'shall have like power and
authority', means the power and authority over the subject-matter, not
restricting to territory.
16. The decision of this Court reported in AIR 1930 Cal 598 cited by this Court
was not approved nor it was taken to be an authority on the question of
jurisdiction by the said Special Bench judgment of Bombay High Court. Justice
Kania (as His Lordship then) in the same judgment considered the decision of
this Court cited by Mr. Kar expressed his own views in extenso.
His Lordship considering the said decision of this Court and the decisions of
the other High Courts came to the same interpretation as that of Chief Justice.
Under those circumstances, I am unable to accept the arguments of Mr. Kar that
scope and purview of Clause 17 of Letters Patent restrict to Presidency town of
Calcutta meaning thereby within the city of Calcutta in its Ordinary Original
I feel this provision is independent of Clause 12 of the Letters Patent.
Precisely for this reason under Section 3 of the Guardians and Wards Act 1890
power under Clause 17 of Letters Patent of the High Court has been carved out
and kept untouched."
In re Tarwichandra Ghosh 4 learned single Judge of the Calcutta High Court
has held as follows:
There is no restriction in the powers granted to either the Supreme Court or the
High Court which limits the exercise of guardianship jurisdiction to the town or
to European British subjects, and even if any such limitation exists, it does
not apply where person who is outside the limits of ordinary original
jurisdiction or who is not a European British subject desires to avail himself
of the jurisdiction of the court and there is no opposition thereto."
In the case of ABC5 v. State (NCT of Delhi),
(2015) 10 SCC 1, the
following was held:
17. This conspectus indicates the preponderant position that it is the unwed
mother who possesses primary custodial and guardianship rights with regard to
her children and that the father is not conferred with an equal position merely
by virtue of his having fathered the child. This analysis should assist us in a
meaningful, dynamic and enduring interpretation of the law as it exists in
18. It is thus abundantly clear that the predominant legal thought in different
civil and common law jurisdictions spanning the globe as well as in different
statutes within India is to bestow guardianship and related rights to the mother
of a child born outside of wedlock. Avowedly, the mother is best suited to care
for her offspring, so aptly and comprehensively conveyed in Hindi by the word "mamta".
Furthermore, recognising her maternity would obviate the necessity of
determining paternity. In situations such as this, where the father has not
exhibited any concern for his offspring, giving him legal recognition would be
an exercise in futility.
In today's society, where women are increasingly choosing to raise their
children alone, we see no purpose in imposing an unwilling and unconcerned
father on an otherwise viable family nucleus. It seems to us that a man who has
chosen to forsake his duties and responsibilities is not a necessary constituent
for the well-being of the child.
The appellant has taken care to clarify that should her son's father evince any
interest in his son, she would not object to his participation in the
litigation, or in the event of its culmination, for the custody issue to be
revisited. Although the Guardian Court needs no such concession, the mother's
intent in insisting that the father should not be publically notified seems to
us not to be unreasonable.
19. We feel it necessary to add that the purpose of our analysis of the law in
other countries was to arrive at a holistic understanding of what a variety of
jurisdictions felt would be in the best interest of the child. It was not, as
the learned counsel suggested, to understand the tenets of Christian law. India
is a secular nation and it is a cardinal necessity that religion be distanced
from law. Therefore, the task before us is to interpret the law of the land, not
in the light of the tenets of the parties' religion but in keeping with the
legislative intent and prevailing case law.
20. It is imperative that the rights of the mother must also be given due
consideration. As Ms Malhotra, learned Senior Counsel for the appellant, has
eloquently argued, the appellant's fundamental right of privacy would be
violated if she is forced to disclose the name and particulars of the father of
her child. Any responsible man would keep track of his offspring and be
concerned for the welfare of the child he has brought into the world; this does
not appear to be so in the present case, on a perusal of the pleading as they
Furthermore, Christian unwed mothers in India are disadvantaged when compared to
their Hindu counterparts, who are the natural guardians of their illegitimate
children by virtue of their maternity alone, without the requirement of any
notice to the putative fathers. It would be apposite for us to underscore that
our directive principles envision the existence of a Uniform Civil Code, but
this remains an unaddressed constitutional expectation."
Thus, in light of the above precedents, principles, facts and circumstances, we
can see the following:
In the present case, the respondent father of the child had an argument stating
that the removal of the minor from his custody and delivering her to the
appellant mother, who lives in London, outside the jurisdiction of this Court,
would not be legally permissible, because it would be Impossible for this Court
to exercise any jurisdiction and effective control over the appellant when once
she left the shores of India.
However, upon considering the many legal precedents above, including the British
Letters Patent of the High Court for the High Court of Judicature for the
Presidency of Madras (28th December, 1865), We can see that the Madras High
Court has like power and authority with respect to the persons and estates of
infants, idiots and lunatics within the presidency of Madras.
Thus, in line with the "parens patriae
" doctrine in which all orphans, dependent
children, and persons deemed incompetent are within the special protection, and
under the control of the state, the court has the right to exercise jurisdiction
for the paramount welfare of the child. So, we can now easily say that yes, the
Madras High Court does have jurisdiction to grant custodial rights with regards
to an Anglo Indian child, to her mother, after a declaration that she is the
natural guardian, as once the rights are granted, the child will be sent to
England, out of the jurisdiction and effective control of the Madras High Court.
In conclusion, yes, the Madras High Court does have jurisdiction to grant
custodial rights with regards to an Anglo Indian child, to her mother, after a
declaration that she is the natural guardian, as once the rights are granted,
the child will be sent to England, out of the jurisdiction and effective control
of the Madras High Court.
Written By: Mohammed Arafat Mujib Khan